"I would like Liberty to comment on the use of harassment warnings by the police. The police appear to be able to issue harassment warnings if a complaint is made, without needing to investigate. The subject of the warning cannot contest it, and unlike a caution it can be imposed even if the subject contests the allegations and puts up a defence. The warning cannot be appealed. The harassment warning will appear on an enhanced CRB check and if any future legal proceedings are taken, it will be treated as 'evidential' ie can be used to demonstrate a course of action or as evidence of bad character. Does this amount to a penalty without a fair hearing, and what rights does an innocent person subject to a harassment warning have?"

We get a lot of questions about harassment warnings and we are grateful to JHJones for raising this issue. In particular we have been contacted by a number of individuals who only really appreciated the implications of having been given a harassment warning once it appeared on a certificate following an enhanced Criminal Records Bureau (ECRB) check. Harassment warnings can be issued by police officers with little or no prior investigation of the original allegation and there is a real concern that this is later incorrectly presented as, or perceived by some to be, little short of a conviction.

The legal background is the Protection from Harassment Act 1997 (PHA). This act makes it a criminal offence to pursue a course of conduct which amounts to harassment of another person, where that person knows (or ought to know) that the act amounts to harassment (which can include alarming a person or causing them distress). There need to be at least two separate occasions of conduct which, together, can be said to amount to harassment. This is where the apparent need for a harassment warning comes in – a single act on its own cannot amount to a "course of conduct" within the meaning of the PHA, but it can be enough for a harassment warning to be issued.

A harassment warning can be given by police following an allegation which, if true and if repeated, would amount to an offence under the PHA. Until or unless further similar allegations are made, there is not enough evidence to charge the person with harassment, hence the warning. The warning lets the individual know that a complaint has been received and that a charge may follow if the conduct complained of is repeated. The rationale is to alert the individual about the complaint, to deter any future incidents of concern and prevent the individual from claiming later on that they did not know their behaviour was unwanted conduct. Clearly, it also saves the police money by not having to investigate each claim separately and at the outset. A harassment warning is not a criminal conviction – simply a notice that a complaint has been received. The behaviour complained of, by itself, does not amount to a crime.

There is no formal police procedure to follow when making a harassment warning. JHJones is right to say that the police are not obliged to investigate the allegation, however as a matter of common sense and law, we think that the police do need to be satisfied at the very least that if the complaint were true and were repeated, that those acts would amount to harassment. If the police did not reasonably believe this, then the issuing of a harassment warning might well be challengeable by way of judicial review, as an irrational act. Any challenge would need to be brought promptly and in any event no later than three months of the date of the harassment warning.

What is upsetting is that there is no procedure for appealing against the making of a harassment warning and for many, this can feel highly unfair. The person who is sent the warning can often feel as though they are being prosecuted, especially when they have had no opportunity to present their side of the story. It is of course always open to individuals who feel that they have been unfairly treated by the police to lodge a formal complaint (in the first instance to the police force that issued the warning and by appeal thereafter to the Independent Police Complaints Commission, IPCC).

Article 6 of the Human Rights Act protects your right to a fair trial in criminal and civil proceedings. It states that:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".

Antisocial behaviour orders (asbos) have been held not to constitute a criminal charge and we think that the same applies to harassment warnings. This is because they do not amount to being charged with an offence or result in any penalty or conviction that would appear on a criminal conviction record. Neither are they considered to be proof that an offence has in fact occurred. If the conduct allegedly continued and did lead to a formal charge of harassment being made, then the allegations would still need to be proved by the prosecution to the criminal standard of proof in order to succeed. It would not be enough simply to point to the existence of the warnings themselves and so I do not think JHJones is quite right to suggest that the warning can stand as evidence of criminal conduct – it would be hearsay. Neither do I think the fact that a harassment warning had been given in the past could be presented as part of bad character evidence, the rules on which are complex and strict. If someone is charged with harassment, the allegations comprising the charge would still need to be proved beyond reasonable doubt.

Neither do we think that the making of a harassment warning could be considered a civil right within the meaning of Article 6 – it does not prohibit or force the subject to do anything, it simply alerts them about the complaint and warns them against future conduct. So our conclusion is that this procedure is not protected by Article 6.

The main problem for people who have contacted us about harassment warnings is with enhanced ECRBs. In the same way that unsubstantiated allegations can be disclosed by police on an ECRB, so can the fact of a harassment warning having been issued. This can be disclosed in the section of the certificate entitled "other relevant information". This engages Article 8 of the Human Rights Act, your right to privacy. The courts have given chief constables a wide discretion in this area in deciding what should be disclosed. Recent case-law from the supreme court has examined how Article 8 rights are to be protected in this situation (the case of R (on the application of L) v commissioner of police of the Metropolis) and there has as a result been a shift back towards the subject again to some extent, in that now the chief constable has to give greater weight than before to the impact of disclosure on the private life of the subject. The guidance also requires that information should only be disclosed where it is necessary and proportionate to do so. In borderline cases, the subject should be given an opportunity to make representations as to why the information should not be included. We hear reports that not all police forces are applying the new guidance set down in this case properly so people do need to be prepared sometimes to try and pre-empt disclosure by writing in advance to the chief constable to ask that the information not be disclosed.

It has been suggested by some that harassment warnings are an all-too-convenient option for the police, as they require little or no investigation and can be dealt with quickly and cheaply and they have no awkward rights of appeal attached. If people are concerned about the circumstances in which they have been given a harassment warning, they should consider lodging a formal complaint and/or seeking prompt legal advice.

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